The Dynamics of Enduring Property Relationships in Land

Sarah Blandy, Susan Bright and Sarah Nield*

Key words: * property relationships * land * time * complexity * discretionary decision-

making

Abstract

This article proposes a new way of looking at property relationships that will enrich our

understanding of how they operate. It focuses on property rights in land which are consensual

in origin, although this approach could usefully be applied both to non-consensual property

relationships and to other property types. Recognising both the temporal and spatial

dimensions of land, the dynamics approach reflects the fact that most property relationships

are lived relationships, affected by changing patterns and understandings of spatial use,

relationship needs, economic realities, opportunities, technical innovations, and so on.

Although evolving responsively to accommodate changing uses and new rights-holders, these

relationships are nevertheless sustained and enduring. The dynamics lens acknowledges the

diverse range of legal, regulatory, social and commercial norms that shape property relations.

Our approach also explores how far the enduring, yet dynamic, nature of property relations is

taken into account by a range of decision-makers.

* Respectively, Professors at the University of Sheffield, University of Oxford, and the University of Southampton. We wish to acknowledge the invaluable contributions both made by those who attended the MLR funded seminar held at New College, Oxford in May 2016 entitled ‘The Dynamics of Enduring Property Relations’ and the critical friends to this project who commented on an early draft. Attendees and critical friends include: Professors Gregory Alexander, Jane Baron, Helen Carr, Hanoch Dagan, Rashmi Dyal-Chand, Lorna Fox O’Mahony, Peter Gerhart, Doug Harris, Michael Heller, Caroline Hunter, Antonia Layard, Timothy Mulvaney, Eduardo Penalver, Joseph Singer, Laura Underkuffler and Andre van der Walt; Associate Professors Bettina Lange and Eileen Webb, Lisa Whitehouse, Frankie McCarthy; Elizabeth Cooke J. Alan Jenkins DJ, Sir Alastair Norris J, Sir Nicholas Underhill LJ and Gary Webber. Professor Roger Halson kindly shared expertise on contract theory. Professors Alison Clarke and Nicholas Hopkins were closely involved in the early development of our ideas until other projects took their attention; we fondly recall our lively discussions, with gratitude. Thanks are also due to the anonymous reviewers. Views, errors and omissions remain our own.Unless otherwise stated, all URLs were last accessed 12 January 2017.

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Introduction

In this article we promote a new way of looking at property relationships that explores the

heart of property: the dynamics of enduring property relationships. These dynamics are

foundational to property relations and an appreciation of them enriches our understanding of

the nature and meaning of property. Although this article focuses on property relationships in

land, this schema could be usefully applied to other types of property, for example,

intellectual or environmental property. In outline, our approach acknowledges the broad

range of legal, regulatory, social and commercial norms1 that touch on property relationships

and recognises that they are not rigid but evolve responsively to the spatial, temporal and

lived dimensions of property in land. This sense of change over time, of ebb and flow,

reflects the enduring nature of property relationships. The dynamics approach recognises that

property relationships are lived relationships that are sustained by their evolution over time to

accommodate changing patterns and understandings of spatial use, new rights-holders,

relationship needs, economic realities, opportunities, technical innovations, and so on.

It may be helpful at this stage to provide a practical illustration. In a block of flats, there will

be a large number of persons who possess property rights: the building owner, the individual

unit-owners, renters, mortgagees, and so on. The title deeds, buttressed by property law,

explain the various rights and responsibilities as between right-holders, rights that are

anchored by that documentation for the duration of a particular property right. The picture on

the ground will, however, be more complex. The dynamics approach involves examining the

relationships between these persons, which means going beyond traditional property law

approaches. There may, for example, be no direct legal relationship between the occupiers of

1 The term ‘norm’ is commonly used in two different senses: the first, meaning values or higher principles, is the sense in which most property law scholars use the term; the second, meaning practices or customs, is the sense in which the term is used by social scientists. In this article ‘norm’ is used in both these accepted senses, but we hope that the context will make clear which meaning is intended. When referring to everyday practices, we generally use the term ‘self-generated norm’.

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different flats and yet in practice they may develop understandings about how communal

spaces in the block can be used. These understandings may be at odds with the wording in

title deeds, and yet the occupiers regard them as binding, in some manner, on them and even

on later occupiers. The occupiers may also recognise that rather than pursuing the self-

interested individualism generally generated by the title deeds, it is necessary to develop a

more collective and co-operative way of living to make the building ‘work’. Further, these

understandings may change over time. Our schema draws attention to this variety and

fluidity, and in particular draws out the relational, that is the contextual and ‘between

persons’ relations, recognizing that these property relationships are in part socially

constructed.

The temporal focus of the dynamics approach is on property relationships across time rather

than those existing at a unique point in time. Property law has of course always incorporated

a temporal element: a lease is a time-limited property right; trusts make provision for future

interests. However, the focus here is not on how time defines and separates doctrinal interests

in land but instead on how, within the context of a given property relationship, the nature of

that relationship may be shaped and re-shaped and yet sustained over time. To adapt an

observation made about the idea underlying relational contract theory (RCT), we are looking

not at ‘one-night stands’ but at marriages,2 and then not at the ceremony itself but at the

shared lives that follow.

In terms of methodology, our analysis is from the perspective of legal realism rather than

legal formalism, that is, one that provides a realistic account about what parties and decision-

makers do and how they behave. In doing so, we draw on elements of doctrinal, empirical,

socio-legal and realist methods.

2 R. Gordon, ‘Macaulay, Macneil and the Discovery of Solidarity and Power in Contract Law’ [1985] Wis. L. Rev. 565, 569.

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The article begins with an overview of the dynamics approach to enduring property

relationships and how it can aid an understanding of property rights in land which originate in

contract or consent.3 The following section then positions this in the context of current

scholarship on contract and property law. We have been influenced by RCT literature,4 and

the work of associated empirical scholars,5 and apply to property relationships the key idea

from RCT that parties to contracts are ‘embedded in complex relations’.6 The article also

engages with contemporary debates in property theory, intending (unlike much theoretical

work) to provide a richer descriptive (rather than normative) account of property

relationships. We next explore the dynamics approach in greater depth by identifying three

key themes: the diverse network of sources influencing rights and responsibilities in enduring

property relations; the temporal element of property; and discretionary spaces in decision-

making. These themes are illustrated by examples taken mainly from our respective areas of

research in English land law: residential leasehold, the use of ‘green’ leases in commercial

property, and residential mortgages.7 Given that most property relations are not ‘one-off’ but

are dynamic, enduring and context-specific, we offer some conclusions on the use and

usefulness of this approach to understanding these relationships.

3 A similar approach could be applied to non-consensual rights in land.4 For example, I. R Macneil, ‘Relational Contract Theory: Unanswered Questions’ (2000) 94 NWULR 877.5 See for example L. Bernstein, ‘Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry’ (1992) 21 The Journal of Legal Studies 115; S. Macaulay, ‘Non-Contractual Relations in Business. A Preliminary Study’ (1963) 28 American Sociological Review 55.6 n 4 above, at 881, footnotes omitted. 7 These sectors form a sizeable part of property interests and the economy: in 2013 there were 4.1 million residential leasehold properties in England, see Department for Communities and Local Government Residential Leasehold in England (2014) at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/342628/Residential_Leasehold_dwellings_in_England.pdf, and in 2015 leaseholds accounted for 43 per cent of all new build registrations with the Land Registry compared with 22 per cent in 1996, see http://www.telegraph.co.uk/finance/personalfinance/borrowing/mortgages/12099723/Why-a-boom-in-leasehold-flats-for-young-and-old-is-causing-concern.html; more than half of commercial properties are rented, see Property Industry Alliance PIA Property Data Report 2015 at http://www.ipf.org.uk/resourceLibrary/pia-property-data-report-2015.html ; in 2015 there were 11 million homes in the UK mortgaged to secure £1.3 trillion of debt, see Council of Mortgage Lenders, Key UK Mortgage Facts at https://www.cml.org.uk/industry-data/key-uk-mortgage-facts/.

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An overview of the dynamics approach

The dynamics approach is concerned with ‘enduring’ relationships, not those with a limited

shelf life, such as between the seller and buyer of a property right which is: ‘… a scenario of

executed obligation: the ‘deal’ has been ‘done’; priorities have crystallised. The interface has

been isolated, short-term, private, bilateral, and impersonal.’8 The term ‘enduring’ is

intended, instead, to convey a sense of long-lasting or on-going relationships in property and

the dynamics approach enables us to pay particular attention to the role of time in property

law. The continuing nature of the relationship is an important feature, affecting the way in

which the governing norms are articulated at the outset, and accommodating the possibility

that these may need to evolve and be adjusted over time to reflect any change in the

relationships between rights-holders in that land and thus the dynamics of the relationship.

Recognition of the impact of the passage of time on property relationships responds to recent

calls for a ‘temporal turn’ in property law analysis, giving attention to issues of time as well

as space in considering the foundations of property.9 Woven within the idea of ‘enduring’,

therefore, is recognition that as the relationship is sustained through time there may be a

degree of ‘give and take’ to accommodate changes in the use of land, in the identity of the

rights holders, in external regulatory and economic forces, as well as the parties’ preferences

for rigidity or flux.

The multi-dimensional perspective on property relationships looks beyond the legal rules

framed by written instruments, common law and legislation. Layered across these doctrinal

rules of contract and property law is a wide range of regulatory measures. In addition, there

may be a rich ambit of wider norms and conventions that impact and shape these property

8 K. Gray and S.F. Gray, ‘The Rhetoric of Realty’ in J. Getzler (ed), Rationalizing Property, Equity and Trusts: Essays in Honour of Edward Burn (London: Butterworths, 2003), 241. Note that Gray and Gray include the mortgage in this category, whereas we see it as an enduring property relationship. 9 M. Valverde, Chronotypes of Law: Jurisdiction, Scale and Governance (London: Routledge, 2014).

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relationships. As well as analysing the paper record or instrument that creates a particular

property right, it is therefore also important to look at the external regulation of such

relationships, the available methods of dispute avoidance and resolution, and to examine the

de facto understandings or expectations between those individuals who are connected by

virtue of their shared use of property. These de facto ‘self-generated norms’ may be specific

to particular sites or relationships, or arise from developed practices of one or both of the

parties, or within the community in which the relationship is nested. They form part of the

dynamics framework, reflecting social constructionist theories that illuminate how property

constructs relationships between people, and how people construct and adjust property rules

through everyday life.10 Collectively, these norms, conventions or social practices may have

a powerful influence upon the parties’ behaviour and their relationship.

This article’s focus on relationships in land reflects the fact that land is a very particular type

of property as it provides the ‘physical sub-stratum for all human activity’ and thus justifies

particularly sensitive treatment of the property relations it encompasses.11 Indeed, a key

debate within property law is the extent to which it should treat ‘the object as unique; it is this

house we own and live in’.12 Radin’s work on property and personhood13 shows that in many

contexts land is strongly related to identity and self-fulfilment, giving it unique features

additional to its spatial dimensions. This helps to explain why property rights-holders often

have a strong desire for the endurance and sustenance of their relationship with a particular

piece of land, thus intensifying the risk and consequences of exiting from property relations

in land. Writing extra-judicially, Mr Justice Norris recognises the origins of property law in

the ‘intense distillation of the relationships of humans to particular places’ and notes that an

‘emotional engagement with the particular place is … part of the landscape in which real

10 R. Cotterell, Law, Culture and Society: Legal Ideas in the Mirror of Society (Aldershot: Ashgate, 2006).11 K. Gray and S. Gray, Elements of Land Law (Oxford: 5th ed Oxford University Press, 2009) [1.1.1].12 B. Rudden, ‘Things as Things and Things as Wealth’ (1994) 14 OJLS 81, 83.13 M. Radin, ‘Property and Personhood’ (1982) 34 Stan. L. Rev 957.

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property law has to operate’.14 This is reflected in English law which has for centuries

allowed ‘real actions’ for the recovery of land in recognition of ‘the especial thing-

relatedness of such assets’,15 rather than confining claimants to personal remedies in money.

If the land in question is a home, the psychological attachment may be especially strong, as

acknowledged through the jurisprudence on Article 8 of the European Convention on Human

Right and Fundamental Freedoms (ECHR).16 Fox identifies the ‘X-factor values’ of home as

identity, territory and as a reflection of social and cultural values.17 The differences between

the use value of property lived in as a home, and its exchange value as a commodity, can play

into judicial decision-making. So, for example, in a recent decision reference was made to

the fact that ‘a non-resident owner of multiple flats would not have the same direct interest in

the affairs of the [resident management] company as a resident owner of a single flat’.18

The spatial dimension of land also means that property relationships may require flexibility

and endurance to accommodate the lived use of land. Where there is a dispute over shared

space, for instance in the enjoyment of individual rights to use common facilities, it may be

necessary to resolve not only the disputed property relationship but also the personal

relationship between the parties. If the personal relationship cannot be maintained the

property relationship may also falter. Legal geography theorists emphasise that ‘spaces

matter. They are constituted and constitutive of social life, practice and experience, and shot

14 Sir Alastair Norris, ‘The Poetry of Property: Its Commoditisation and Commercialisation’ Annual Property Law Lecture of The Liverpool Law School and the Chancery & Commercial Practice Group, Atlantic Chambers, held at the University of Liverpool, 4 November 2015 ( paper on file with authors); at [8] and [11].15 P. Birks, ‘Five Keys to Land Law’ in S. Bright and J. Dewar (eds), Land Law: Themes and Perspectives (Oxford: Oxford University Press, 1998) 471.16 See Gillow v UK (1989) 11 EHRR 335, Connors v UK (2005) 40 EHRR 9 and A. Buyse, ‘Strings Attached: the concept of home in the case law of the ECHR’ (2006) 3 EHRLR 294.17 She also identified the qualities of home as shelter and investment; see L. Fox, Conceptualising Home: Theories, Laws and Policies (London: Bloomsbury Publishing 2006).18 Sugarman v CJS Investments LLP [2014] EWCA Civ 1239 at [157].

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through with power and possibility’.19 This understanding highlights the impossibility of

separating a place, the law that governs and applies to it, and the parties who use it and hold

property rights in it: ‘aspects of the social that are analytically identified as either legal or

spatial are conjoined and co-constituted’.20

A focus on time and the dynamics of property relations requires consideration of how the

different sources (conventional legal rules, regulatory principles, self-generated norms etc)

are likely to come to the fore at various points in a given property relationship. Our analytical

framework helps to identify that these informal norms may sometimes come to be taken into

account by the law (perhaps even being formally recognised in law and in equity through

time or by way of waiver of consensually agreed rights), and may sometimes ‘behave like

property’ in that they are transmitted to subsequent holders of property rights. Further, during

the day-to-day lived relationships, the law itself will often lie largely hidden or unknown in

the background and yet at other times it is the formal legal rights that are privileged, perhaps

particularly when the relationship is in crisis. Parties who have been previously unaware of

the precise legal details, or content to agree to ignore them, may turn to the law at such

moments.

This approach also takes note of the variety of ways that decisions can be made when there

are disputes about property relationships. Sometimes judicial decisions may pay attention to

the dynamic and enduring nature of property relations (as we illustrate below), sometimes

they adopt the traditional ‘winner takes all’ approach.21 Further, we note that although judges

19 N. Blomley, ‘Property Law and Space’ in S. Bright and S. Blandy (eds) Researching Property Law (London: Palgrave, 2016) 135. The importance of power in property relations cannot be ignored, but we are unable to address it here for reasons of space. 20 I. Braverman, N. Blomley, D. Delaney, and A. Kedar, ‘Expanding the Spaces of Law’ in I. Braverman, N. Blomley, D. Delaney, and A. Kedar (eds) The Expanding Spaces of Law: A Timely Legal Geography (Stanford, CA: Stanford Law Books, 2014) 1.21 R. Dyal-Chand, ‘Sharing the Cathedral’ (2013) 46 Conn. L. Rev 647.

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will usually privilege the contractual document, the parties’ unwritten understandings may be

factored into the interpretation of the factual matrix.22 The courts now encourage alternative

dispute resolution, so we also consider dispute resolution beyond the courts by regulators and

mediators, and in some instances the parties themselves,23 and how these processes may open

up discretionary spaces in decision-making to accommodate the dynamics of the property

relationship.

The theoretical frame: beyond RCT and property law scholarship

This section of the paper positions our schema within existing scholarship. The dynamics

approach does not start from the individual property owner, but attempts to capture the

complexity of property relations, as other scholars, notably Dagan24 and Page25, have also

done. Although our approach, which is essentially descriptive, and our focus, which is on

property relationships in land, differ from the other theoretical work discussed below this

section highlights how those analyses have informed our own, as well as where our work

differs.

Reading across from Relational Contract Theory

The core RCT idea that contracts are ‘embedded in complex relations’26 suggests that to

understand enduring property relationships it may likewise be necessary to take account of

implicit understandings which inform or lie beyond the stated contractual terms and the

adaptations made over the life of the contract. Macneil’s imagery of a ‘spectrum of

22 Investors Compensation Scheme Ltd. v West Bromwich Building Society [1998] 1 WLR 896.23 For example, the collective decisions of enfranchised leaseholders. 24 H. Dagan, Property, Values and Institutions (Oxford: Oxford University Press, 2011). Dagan’s thesis is that there are multiple institutions of property, reflecting and promoting different societal values, so the search for one core explanation of property and its values is unproductive and undesirable.25 J. Page, Property Diversity and its Implications (Abingdon: Routledge, 2017). Page argues against the centrality of the private ownership property as it produces undesirable normative outcomes.26 n 4 above, at 881, footnotes omitted.

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contractual behaviour and norms’ suggests a continuum from ‘as-if-discrete transactions’27

(which conform to classical contract theory) to relational (or ‘intertwined’)28 contracts in

which the parties’ mutual trust and reciprocity are more important than their legal

relationship. For discrete contracts, Macneil’s neologism ‘presentiation’ conveys the idea that

that there is complete contract planning at the time of contract formation (that is, the contract

includes in the present moment provision for all, including future, aspects of the parties’

relationship). We might expect enduring property relationships to reflect the norms associated

by RCT scholars with strongly relational long-term contracts: solidarity, reciprocity,

flexibility and role integrity.29 After all, although initial consent frames the property

relationship at the outset there is a strong temporal element, as Gerhart comments:

the idea of consent as the source of relationships also illuminates ideas about

relationships over time. … Either circumstances change, or people in the

relationship change their values and interests, or the identity of the people in the

relationship change.30

Indeed, we have already referred to the de facto self-generated norms that arise from and

inform property relationships, echoing Kimel’s characterisation of relational contracts as

having ‘the propensity to generate norms, define or inform parties’ expectations, provide

sources of reassurance, facilitate co-operation, create interdependence’, beyond the express

contractual terms.31 Not infrequently, however, enduring property relationships are also

highly presentiated, thus reflecting characteristics associated with discrete contracts, and we

explore below the interrelationship between presentiation and the implicit relational

27 n 4 above, at 895.28 I. R Macneil, ‘Relational Contract Theory as Sociology: A Reply to Professors Lindenberg and de Vos’ (1987) 143 J. Inst. & Theoretical Econ. 272, 276.29 n 4 above, at 897. 30 Personal communication with the authors. 31 D. Kimel, ‘The Choice of Paradigm for Theory of Contract: Reflections on the Relational Model’ (2007) 27 OJLS 233, 236.

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understandings when it comes to dispute resolution. Further, whatever the legal

documentation says, empirical research into relational contracts shows that the parties may in

practice understand the relationship differently and/or pay little attention to the contract.

Macaulay and Bernstein therefore argue that it is necessary to look beyond the ‘paper deal’ to

the ‘real deal’ and, in particular, to reflect upon and identify when the paper deal is ‘non-

used’, and when non-contractual norms are preferred.32 This insight is also very useful in

understanding property relationships.

Our focus on relational property, rather than contract more generally, requires us to reflect on

how the spatial and functional dimensions of property in land affect the relational behaviour

and norms.

Exclusionary and other rights in property

Although the starting point for many inquiries into the nature of property has become what is

referred to as the ‘bundle of rights’ view (the bundle representing the ‘collection of the

individual rights people have as against one another with respect to owned resources’33),

Penner has argued that it is important to preserve the idea that property is a ‘right to a

thing’.34 As Heller observes, while the bundle of rights metaphor ‘reflects well the possibility

of complex relational fragmentation, it gives only a weak sense of the “thingness” of private

property’.35 As discussed above, we agree that when the property is land it is both inherently

32 S. Macaulay, ‘The Real Deal and the Paper Deal: Empirical Pictures of Relationships, Complexity and the Urge for Transparent Simple Rules’ (2003) 66 MLR 44; L. Bernstein, ‘Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms’ (1996) 144 U. Pa. L. Rev. 1765.33 G. S. Alexander and E. M. Peñalver, An Introduction to Property Theory (New York: Cambridge University Press, 2012) 2.34 J. E. Penner, The Idea of Property in Law (New York: Oxford University Press, 1997) 2; J. E. Penner, ‘The “Bundle of Rights” Picture of Property’ (1995-1996) 43 UCLA L.Rev. 711. See the classic statement of the bundle of rights view in C.B. Macpherson, ‘Introduction’ in C. B. MacPherson (ed), Property: Mainstream and Critical Positions (Toronto: University of Toronto Press, 1999). For the opposing ‘property as thing’ thesis, see also, for example; H. E. Smith, ‘Property as the Law of Things’ (2012) 125 Harv. L. Rev. 169.35 M.A. Heller, ‘The Boundaries of Private Property’ (1999) 108 Yale L. J. 1163, 1193.

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relational and to do with a thing, because the physicality of the land is also centrally

important in forming and reforming these relationships.

A current and lively debate, particularly amongst North American property scholars, is

focussed on the ‘means by which property organizes human behavior and social life’, framing

the debate in terms of whether there is a specific stick in the bundle that is uniquely

important, that is, ‘whether the right to exclude is fundamental to what it means to have a

property right.’36 According to Baron, information theorists37 focus on how property law

works ‘through exclusion rights with respect to things’; they maintain that property should

provide clear signals enabling efficient transactions, and so ‘bundles of rights are not and

should not be infinitely customizable’.38 Information theorists suggest that there is, and

should be, a clear, streamlined and stable system of property to facilitate transactions and

ensure that property rights are clearly communicated; property rules should be ‘crystalline’

rather than ‘muddy’.39 Therefore, the right to exclude others is the paramount property right.

In contrast, the bundle of rights property theorists emphasise that property ‘isn’t about

controlling the “thing” so much as it is about my relationship with you, and with everybody

else in the world’.40 That approach to understanding property is now closely associated with

the progressive property theorists, who argue that property law should be concerned with ‘the

inevitable impacts of one person’s property rights on others’.41 Their focus is not ‘on

36 J. E. Baron, ‘The Contested Commitments of Property’ (2010) 61 Hastings L. J. 917, 918 and 919. 37 See, for example, T. W. Merrill and H. E. Smith, ‘Optimal Standardization in the Law ofProperty: The Numerus Clausus Principle’ (2000), 110 Yale L. J. 1; H. E. Smith, ‘Property and Property Rules’ (2004) 79 N. Y. U. L. Rev 1719.38 n 36 above, 940. 39 C. M. Rose, ‘Crystals and Mud in Property Law’ (1987-88) 40 Stan. L. Rev. 577.40 C. M. Rose, ‘Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory’ (1990) 2 Yale J.L. & Human. 37, 40. 41 G. S. Alexander, E.M. Penalver, J. W. Singer and L.S. Underkuffler, ‘A Statement of Progressive Property’ (2009) 94 Cornell L. Rev. 743, 743.

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function, but on ends’, meaning that a considerable level of complexity in property law and

potential for change can be expected and tolerated.42

We agree with this view. Indeed, it is exactly this complexity that the dynamics perspective is

designed to illuminate, so there are clear affinities between the progressive understanding of

property relations, and the views advocated here. However, progressive property theory

remains centred on the property rights-holder and their relationship with the world, and with

the state. This is a major difference from our perspective. Another difference is that both the

progressive and information approaches to property are normative. The information theorists’

claim is that ‘to coordinate social behaviour effectively, property should be (on the whole)

simple’, while progressive theorists are concerned with whether ‘property rules are serving

the proper values and creating appropriate relationships’.43 In contrast, our goal is to

understand how property relationships work, rather than to advocate that property

relationships should be governed by any particular normative values, for example, fairness,

efficiency or sustainability.

In the UK much property law scholarship is doctrinal, focussing on legal rules rather than

normative principles.44 The Grays’ enquiry into ‘the various forms of reasoning displayed in

our law of land’ is therefore an exception.45 They find that ‘large normative propositions lurk

quietly – in true Anglo-Saxon understatement – between the inscrutable lines of statutory or

judicial prose’.46 These are termed ‘meta-principles’, embodying fundamental ethical or

systemic values which reflect the constantly evolving social economic and physical contexts

of land law. The Grays argue persuasively that there are three current normative meta-

42 n 36 above, 939. 43 ibid 950 and 951. 44 S. Blandy and S. Bright, ‘Property Law Research Now and into the Future’ in S. Bright and S. Blandy (eds), Researching Property Law (London, Palgrave, 2016) 183.45 n 8 above, 278. 46 ibid 236.

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principles applied to differing spheres of property relationships. In one-off transactions

between strangers, the relevant meta-principle that the law seeks to promote and reward is

rationality, whereas in ‘those large public issues which relate to the environmental quality of

the life we enjoy, inevitably in common, with our fellow citizens’ it is reciprocity.47 Between

neighbours, the Grays suggest that the meta-principle that frames court decisions is ‘the

maximisation of social co-operation’.48 Whereas their analysis is argued from the starting

point of legislation and case law, our approach starts from the land and the relationship

between holders of property rights in it, revealing the complex dynamics of enduring property

relationships rather than normative meta-principles.

Governance property

In contexts where land is used in common with other rights-holders, some arrangements for

its governance must be put in place. The bundle of rights metaphor has been said to be useful

for ‘teasing out the different facets of ownership … in complex governance arrangements

such as common interest communities or residential owners associations’.49 Confusingly

though, the term governance has been used in different ways. Smith, for example,

differentiates ‘property’ (which he associates with exclusionary rights) from ‘governance’, by

which he means a wide range of sources ‘from contractual provisions, to norms of proper use,

to nuisance law and public environmental regulation’.50 By contrast, Alexander’s definition of

‘governance property’ encompasses both the external relations of property and internal

governance norms in multiple-ownership property,51 for example marriage or domestic

47 ibid 265. 48 ibid 206. 49 J.B. Baron, ‘Rescuing the Bundle-of-Rights Metaphor in Property Law’ (2014) 82 U. Cin. L. Rev. 57, 80.50 H.E. Smith, ‘Exclusion versus Governance: Two Strategies for Delineating Property Rights’ (2002) 31(S2) J. Legis. S453, at S455. 51 G. S. Alexander, ‘Governance Property’ (2012) 160 U. Pa. L. Rev. 1853.

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partnerships, the home or household, common interest communities, leasehold, business

partnerships and commercial trusts.

As Dagan notes, the concept of governance property accounts for, or at least does not

overlook, property relationships other than fee simple ownership,52 so it seems to map well

onto the type of property relationships that are our focus. Dagan suggests that formal and

hierarchical governance arrangements which foreground the legal rules are appropriate for

predominantly economic property institutions, whereas law acts ‘in softer ways’ to facilitate

the ‘informal and participatory’ governance arrangements for predominantly social property

institutions’.53 This observation assists our approach to understanding the range of different

enduring property relations.

Like ours, Alexander’s enquiry is shifted away from the ‘external life’ of property towards

the ‘internal relationships among property stakeholders,’54 asserting that a concentration upon

the external life of property and particularly on the right to exclude, gives ‘a distorted and

misleading view of property’.55 Our approach also centres on the use of land and the

enduring relationships between those with property rights in the same land, taking into

account the influence of broader external forces on these relationships. We agree with

Alexander that use of land is the key, as exclusion inevitably centres on disputes, but our

perspective is distinct from his. Alexander’s concept of governance property is too broad for

our purposes; although his work includes some of the relationships that we are exploring, for

instance leaseholds, it is more expansive as it also includes wider co-ownership structures,

including domestic partnership, trust property and business organisations. Whilst the

dynamics approach would seem particularly pertinent in the context of the family home, the

52 H. Dagan, ‘Inside Property’ (2013) 63 University of Toronto Law Journal 1.53 ibid 6.54 n 51 above, 1854-1855, italics in the original.55 ibid 1855.

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dominant dynamics of the family relationship are likely to drown out the influence of the

essential spatial and temporal dimensions of land that we wish to explore.

A further distinction is that Alexander’s purpose is normative; he argues that governance

property contributes to the development of certain virtues that promote human flourishing,

primarily community, cooperation, trust and honesty.56 Dagan also suggests that governance

property promotes co-operation rather than competition.57 We accept that norms promoting

human flourishing may constitute an aspect of particular property relations, but do not

consider that this is an essential element, or even usual, in all governance property

relationships. The structure of a typical commercial lease, for example, creates a division

between the financial interests of the landlord and tenant that is often said to contribute to an

adversarial relationship between the parties; indeed, that relationship is sometimes referred to

as a battleground.58

In the following section we turn to consideration of the inevitable, but often unrecognised,

complexity in property relations due to their inherent dynamics: time elapses, parties to the

relationship change, and the parties’ use and understanding of the rules and norms that apply

to the property.

Explaining the dynamics of enduring property relationships

The dynamics approach offers multiple ways of looking at these inherently complex property

relationships so that we can appreciate their differing features. For convenience we group

these perspectives into three inter-related categories: the diverse network of sources,

property’s temporal element, and discretionary spaces in decision-making.

56 ibid 1859. 57 n 52 above. 58 S Bright, ‘Carbon Reduction and Commercial Leases in the UK’ (2010) 2 IJLBE 218, 227; J Patrick and S. Bright, ‘WICKED insights into the role of green leases’ (2016) Conv. 264, 272.

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Our starting point is property relationships which are built around property rights recognised

by the legal system. In land law terms, this means rights within the numerus clausus, such as

the fee simple, leasehold, mortgages, easements and so on. But rather than focus our attention

exclusively on these rights, we are interested in using a broad dynamics lens to explore the

relationships between the persons who each possess one of these property rights in relation to

the same land (such as mortgagee and mortgagor). At times this may be broadened out yet

further to explore the relationships amongst rights-holders who are spatially connected but

may not have direct contract-based property rights with each other (as with the occupiers of

flats).

The diverse network of relationship sources

Even though we start from property-rights narrowly defined, in explaining the various

influences that shape these relationships we adopt a more expansive approach that looks

beyond legal instruments, to include self-generated norms and what Singer refers to as ‘social

custom’.59 This broader approach is akin to the wider recognition within RCT scholarship that

an analysis of contractual relationships requires ‘understanding, recognition and

consideration of all essential elements of its enveloping relations’.60 Although reasons of

space prevent us from discussing here other factors which may, in certain contexts, have an

impact on particular property relations, such as the law of trespass, the tort of nuisance (from

tree roots to noise), restrictive covenants, rights of reasonable access to another’s land,61 and

‘public environmental regulation’,62 all of these potentially fall within the ambit of the

dynamics approach.

59 J.W. Singer, ‘Democratic Estates: Property Law in a Free and Democratic Society’ (2009) 94 Cornell L. Rev. 1009, 1053.60 n 4 above, at 881, footnotes omitted. 61 All these examples are taken from Gray and Gray, n 8 above.62 n 50 above, S455.

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The core elements of consensual property rights include, but are not confined to, the

background common law and statutory rules of property and contract law, such as rules that

dictate the definitional content of de jure property interests: for example, the requirement that

a tenant has exclusive possession. They also include default rules that apply unless excluded

or varied, for example, that a legal charge by way of mortgage confers upon the chargee an

implied power of sale and to appoint a receiver.63 For many doctrinal scholars it is these

kinds of rules, as developed and applied through the common law and equity, that are the

exclusive focus of attention. Yet even within this legal frame there are other essential

elements that are central to understanding any property relationship. Prominent are the

specific terms that have been agreed on by the parties. Indeed, the starting point for much

legal advice and decision-making is to learn what the parties have set out in the contract. In

turn, these express provisions are also subject to the canons of construction and contractual

interpretation,64 and may further be subject to various measures intended to rebalance the

inequality of bargaining power between the parties, to breathe some reality into the

consensual foundation of the parties’ relationship. Such measures include equity’s concern to

guard against oppressive and unconscionable terms,65 terms implied by common law and

statute,66 and legislative measures that require contractual terms to meet statutory standards of

fairness67 or risk being struck down or altered upon enforcement.68 Regulation may also

63 Law of Property Act 1925, s101. Other examples from English land law include Law of Property Act 1925, ss 78 and 79, essentially intended as word-saving devices to assist in the transmissibility of restrictive covenants.64 See, for example, Arnold v Britton [2015] AC 1619, discussed further below.65 See, for example, in relation to mortgages: Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441; G&K Kreglinger v New Patagonia Meat and Cold Storage Co Ltd [1914] AC 26, and Multiservice Bookbinding Ltd v Marden [1979] Ch 84. 66 See, for example, Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742, and Landlord and Tenant Act 1985, s 11.67 Consumer Rights Act 2015, Part 2.68 ibid and, in relation to certain consumer mortgages, Consumer Credit Act 1974, s140A-C. As an example see the finding that non-negotiable terms in leases issued by developers McCarthy and Stone breached the standards now found in the Consumer Rights Act 2015, Part 2: OFT investigation into retirement home transfer fee terms (London, Office of Fair Trading, 2013).

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provide routes to promote flexibility within the parties’ relationship by providing

opportunities for that relationship to be re-negotiated or otherwise adjusted.69

Further, the interface between contract and property rules will frequently create its own

tension. For instance, terms that clog the equity of redemption in mortgage law may be

satisfactory through a contractual lens but void under property law,70 and a lease of uncertain

duration may be valid as a matter of contract but fall foul of the requirement for certainty of

term demanded by property law.71

The temporal nature of enduring property relationships means that these de jure rights may,

over time, be lived differently or acquire new legal meaning. Some legal doctrines

specifically recognise this. A useful illustration is provided by Bradley v Heslin, a neighbour

dispute involving easements.72 The history of this case started in 1977 when the owner of a

large house (number ‘40’) built a smaller house (number ‘40A’) in the back garden, sold the

large house and the front garden, and retained ownership of 40A and a driveway leading from

it to the road. The buyer of 40 was granted a right of way over this driveway but as part of

subsequent work to his own property he also rebuilt the driveway (even though it belonged to

40A), changing the dimensions of the driveway to include some of 40’s land and installing a

pair of iron gates where the driveway met the road. Over the next 30 years both properties

changed hands more than once. At times the gates were generally closed and locked, to keep

in an aggressive dog, or to prevent young children from wandering out into the road. During

other periods the gates were mostly open, except when there were worries about rowdy

69 For example, the Leasehold Reform Act 1967 gives leaseholders of houses the right to buy the freehold. Qualifying leaseholders of flats can collectively enfranchise: Leasehold Reform Housing and Urban Development Act 1993 (as amended by the Commonhold and Leasehold Reform Act 2002). See also Law of Property 1925 s84 which provides for the modification or extinction of restrictive covenants, which the Law Commission has recommended should be extended to easements (see Law Com 327 (2011) Part 7). 70 Jones v Morgan [2001] EWCA Civ 995.71 Prudential Assurance Ltd v London Residuary Body [1992] 2 AC 386 and Berrisford v Mexfield Housing Co-operative Ltd [2012] 1 AC 955. 72 Bradley v Heslin [2014] EWHC 3267.

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youngsters trespassing, or outbreaks of burglary in the area. But in 2011 the then owners

could not agree whether the gates should be kept open or closed when not in use. Their

formal legal rights, recorded in the grant of the easement, no longer reflected how the land

was laid out, or the practices about usage that had developed over time.

After a three day hearing in the High Court, and a site visit, Norris J found the understandings

and conduct of the neighbours had led to an adjustment of ownership boundaries of the drive

through either adverse possession or proprietary estoppel. The current owner of 40 also

enjoyed an equitable easement founded in estoppel (not part of the original grant) consisting

of ‘a right to close and open the gates for all purposes connected with the reasonable use and

enjoyment of their property’, subject to the proviso that the exercise of this right must not

‘substantially interfere with the reasonable enjoyment of the small house.’73Although the

judge handed the problem back to the parties to resolve, he did indicate how the declared

rights ‘might be applied on the ground in daily life’, suggesting reasonable hours for the gates

to be shut until ‘adequate opening arrangements’ could be achieved through installing electric

gates.74

Norris J’s approach in this case reflects several dimensions of the dynamics approach, and is

used as an illustration throughout this article. The decision in Bradley was reached by looking

not only to the formal legal instruments, but also at the facts on the ground, and after careful

consideration of the interrelationship between legal rights and agreements, understandings

and ‘simple acts of neighbourliness’.75 The outcome – with the adjustment of ownership

boundaries and recognition of an equitable estoppel - demonstrates also how the formal

73 ibid at [82].74 ibid at [85]. The case was appealed but settled at the door of the Court of Appeal: personal email communication from Lawrence McDonald, junior barrister for the Bradleys. 75 Ibid at [51].

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property rights themselves may change over time. Further examples are given below when

we discuss Blandy’s research on residential leasehold sites.

The life of the property relationship is, in any event, often inattentive to these formal legal

frames. Patrick and Bright’s research on the use of ‘green’ (environmental) clauses in leases

of commercial property found that for many landlords and tenants the lease seemed largely

irrelevant for day to day issues: the parties talked about the idea of the ‘lease in a cupboard’,

locked away and never looked at.76 Similar attitudes to formal law are common in residential

leasehold and mortgage relationships; many leaseholders or mortgagors are not only unaware

of what the lease or mortgage says, but also do not know where to find the document itself.77

The fact that parties to an enduring property relationship may not know or be concerned to

check the legal frame of their relationship echoes the difference between the ‘paper deal’ and

the ‘real deal’ observed in RCT scholarship.78

Regulatory measures play several, often interconnecting, roles that affect property

relationships, additional to the ways in which the contractual rights may be adjusted. The

scope of regulation has proved notoriously difficult to pin down; Black suggests a definition

of any ‘intentional activity of attempting to control, order, or influence the behaviour of

others’.79 There may be ‘top-down’ regulation taking the form of command and control rules

externally imposed by government or regulatory bodies.80 But regulatory theory has identified

a wide range of influences, actors and networks beyond government that also set, monitor and

require compliance with behavourial standards, often employing softer and more subtle

76 J Patrick and S. Bright, ‘WICKED insights into the role of green leases’ (2016) Conveyancer 264, 277.77 See National Leasehold Survey 2016, available at: http://www.lease-advice.org/files/2016/07/ Brady - Solicitors-in-partnership-with-LEASE-Leaseholder-Survey-June-16.pdf78 n 32 above.79 J. Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self Regulation in a "Post-Regulatory" World’ (2001) 54 Current Legal Problems 103, 142.80 For example the licensing requirements applicable to houses in multiple occupation under the Housing Act 2004, Part 2, which prescribe detailed housing standards for licensed properties.

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techniques.81 An extreme illustration of a softer regulatory technique is the landlord leaving

flowers for an in-coming tenant, which Cowan observes is more effective than the contract in

establishing a good working relationship.82 The general move towards de-centred and softer

regulation recognises and utilises these subtle influences and complex networks. Thus ‘top-

down’ forms of regulation may be supplemented, or even kept at bay, by the influence of

‘middle-out’ – or sideways - regulatory pressures.83 Prominent amongst such pressures are

consensus tools which rely on persuasion and co-operation to modify behaviour and are

encapsulated within ideas of responsive regulation which seeks to harness the regulated’s

own decision-making and management structures, to achieve compliance with broad based

behavioural objectives.84 Such approaches are evident, for example, in the indirect, or

steering, influence of regulatory measures which set minimum energy efficiency standards85

and are driving the adoption of particular ‘green’ clauses in some segments of the commercial

property market. In this context, non-state ‘middle actors’– in particular property industry

groups –exert ‘sideways’ influence86 by promoting ‘toolkits’ offering a menu of ‘green’

clauses that parties can elect to include in leases,87 and, in turn, landlords are also sideways

actors as they roll out ‘green’ leases across their property portfolio.

Alongside the various legal and regulatory influences are the ways in which the parties to the

property relationships themselves generate norms that guide behaviour. Even if the parties

acknowledge the contract as a reference point, the express terms may be ambiguous or silent

81 I. Ayres & J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1992).82 D. Cowan, Housing Law and Policy (Cambridge: Cambridge University Press, 2011) 11.83 Y. Parag and K. B. Janda, ‘More than Filler: Middle Actors and Socio-Technical Change in the Energy System from the Middle-Out’ (2014) 3 Energy Research and Social Science 102.84 L. Salamon (ed), The Tools of Government: A Guide to the New Governance (New York: Oxford University Press, 2002).85 See the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, which make it unlawful to let properties that fail to achieve a prescribed minimum energy efficiency standard.86 K. B. Janda, S. Bright, J. Patrick, S. Wilkinson & T. J. Dixon (2016) ‘The evolution of green leases: towards inter-organizational environmental governance’, 44 Building Research & Information 660, 667. 87 Ibid 665.

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on the issue upon which the parties need an answer. Practices thus emerge and are developed

to address gaps, to agree the meaning of stated obligations, to find ways around

inconsistencies, or simply an agreement to ignore unwanted terms.

Residential mortgages provide examples of how the lived property relationship is affected by

understandings and practices developed by the parties, as well as by the wider interplay of

other sources including the mortgage contract terms, statute, and market regulatory measures

(both hard and soft). The key crisis point in the mortgage relationship arises on default when

the mortgagee seeks possession as a prelude to sale. As a property right the residential

mortgage creates a peculiar fictional relationship between mortgagee and mortgagor: by

nature a legal charge, but a charge that creates a property relationship as if there were a lease

of 3,000 years granted by the mortgagor.88 In law, the mortgagee (as lessee) thus has an

immediate right to possession that is not dependent on default but arises ‘before the ink is dry

on the mortgage.’89 This bizarre relationship is neither desired nor often appreciated by the

parties and in practice the parties will contractually agree that the mortgagee should only be

entitled to possession on default. Equity also discourages repossession by imposing strict

fiduciary duties on the mortgagee90 and ensuring that possession is only granted to recover

the debt.91 More significantly in relational terms, statutory and regulatory measures call for

the sustainability of the enduring relationship between the parties to be supported whenever

possible through forbearance by the mortgagee.

The mortgagee’s conduct is influenced by regulatory norms prescribed by the Financial and

Services Market Act 2000 (FSMA 2000). The Financial Conduct Authority (FCA) has 88 Law of Property Act 1925, s 87(1).89 Four-Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317, 320 [Harman J]. 90 Eg to account for what the mortgagee ought to have received, see White v City of London Brewery (1889) 42 Ch D 237.91 Quennell v Maltby [1979] 1 WLR 318.

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established as an overarching principle that residential mortgagees must ‘pay due regard to

the interests of its customers and treat them fairly.’92 In attempting to clothe this aspirational,

yet abstract, standard with more bite, the FCA has articulated a set of distinct regulatory

outcomes93 but it is the Mortgage Conduct of Business Rules (MCOB)94 that sets out in

greater detail ‘fair’ conduct: for instance, on default mortgagees are required to explore

forbearance and only to seek enforcement as a last resort.95 The courts also require the

sustainability of the mortgage relationship through forbearance to be explored before

litigation,96 and are empowered to delay repossession where satisfied that the mortgagor can

repay arrears within a reasonable time.97 These regulatory requirements are supplemented by

practices and attitudes developed across the mortgage industry, and which may be

crystallised in practice guidance by trade bodies, such as the Council of Mortgage Lenders

(now part of Finance UK).98 Individual mortgagees will also develop their own internal

forbearance policies, which may change over the life of the mortgage relationship.

Nevertheless, research has demonstrated the variable and intimidating experience that

mortgagors can face when seeking to navigate this forbearance process that can seem opaque

rather than ‘fair.’99 Furthermore, a mismatch between these diverse influences on the

mortgagee’s conduct in the event of default reveals the significance of their interface. A

92 Financial Conduct Authority, Handbook, The Principles para. 2.1.6, at https://www.handbook.fca.org.uk/handbook/PRIN/Sch/6/6.html. This handbook was first published by the FCA in 2003, in consultation with industry and consumer groups, pursuant to the FMSA 2000.93 See https://www.fca.org.uk/firms/fair-treatment-customers viewed 9 April 2017.94 Financial Conduct Authority, Handbook, MCOB, at https://www.handbook.fca.org.uk/handbook/MCOB/13/?view=chapter.95 ibid para. 13.3.2A (6).96 See Pre-action Protocol on Possession Actions based upon Mortgage or Home Purchase Plan Arrears in Respect of Residential Property, at http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_mha . 97 Administration of Justice Act 1970, s 36; Cheltenham & Gloucester BS v Norgan [1996] 1 WLR 343.98 For example see CML, Guidance to Members – the Role of LPA Receivers (2014).99 A. Wallace, ‘Feeling like I’m doing it on my own: Examining the Synchronicity between Policy Responses and the Circumstances and Experiences of Mortgage Borrowers in Arrears’ (2012) 11 Social Policy and Society 117 and S. Bright & L. Whitehouse, Information, Advice and Representation in Housing Possession Cases (Universities of Oxford & Hull 2014). Even the FCA acknowledges this variable experience see FCA, Mortgage lenders’ arrears management and forbearance TR14/3 (2014).

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failure to comply with the MCOB rules requiring forbearance may lead to regulatory censure

but will not affect the parties’ underlying property rights and obligations.100

The complexity of enduring property relations can also be seen in residential leasehold,

which is similarly heavily-regulated.101 Each unit-owner will have a long lease of their unit as

well as property rights over common parts, such as parking areas, grounds, entrance lobbies

and lifts. The leaseholders will be granted formal rights of use and access to these common

parts, but as the typical lease is silent on how leaseholders’ easements over the common parts

are to take effect the parties have to develop their own understandings and practices that will

govern their day to day relationships. Over time these de facto rules become established and

may be treated as binding by new owners. Further, even where the lease sets out in detail the

rights and responsibilities of the parties, one respondent in Blandy’s empirical research

explained that the occupiers had collectively chosen ‘not to enforce some things [that are set

out in the lease] – like no barbecues, or hanging out washing - because after a while we

discovered what as a group we want to do’.102 In many residential leasehold sites, individual

de jure property rights have been changed over time by de facto understandings. To take an

extreme example, at one site the property boundary was changed informally and had become

recognized by other owners: ‘I mean, legally it was my garden, and she wanted to have that

bit of land close to one of her windows. In the end a solution was reached ... she paid some

money to me and I passed that on to someone else, and I got another bit of garden’. 103

100 Thakker v Northern Rock (Asset Management)Plc [2014] EWHC 2107.101 S. Blandy and D. Robinson, ‘Reforming Leasehold: Discursive Events and Outcomes, 1984-2000’ (2001) 28 JLS 384.102 S. Blandy ‘Collective Property: Owning and Managing Residential Space’ in N. Hopkins (ed) Modern Studies in Property Law vol. 7 (Oxford: Hart, 2013). 103 ibid 164. Likewise, in Bradley v Heslin (n 72 above), Norris J noted that the driveway had been moved with the probable knowledge and consent of the driveway’s owner, in disregard of the boundaries in the formal grant.

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These empirical findings go beyond Alexander’s concept of governance property. They

chime with Ostrom’s work on common pool resource governance which provides a helpful

framework for analysing how property is constituted through the everyday practices which

contribute to the social ordering of sites.104 Ostrom defines ‘working rules’ as those which are

actually used, monitored and enforced by those directly involved, and which are known about

by most of the people affected by them. The rules which the parties themselves agree are part

of the lived realities of enduring relations, as also illustrated by the 30 ‘harmonious years’

enjoyed by successive neighbours in Bradley v Heslin.105

Evaluating the role of these understandings and self-generated norms presents a real

challenge. Their elements and scope are difficult both to identify and unpick. In Neilson v

Poole Megarry J noted approvingly that informal ‘agreements and understandings are by their

nature acts of peace, quieting strife and avoiding litigation, and are to be favoured in the law,

however informal they might be’.106 In Bradley, Norris J referred to this dictum but

nonetheless urged caution that ‘simple acts of neighbourliness should not ripen into legal

rights vested in the beneficiary of the actor’s kindness’.107 Self-generated norms are

particularly prominent in self-managed property relations, for example residential leasehold

sites in which leaseholders own, manage and use the site collectively.

In thinking about how self-generated norms should be taken into account in the dynamic and

enduring property relations with which this article is concerned, two inter-related issues arise.

The first is how, and if so at what stage, these norms may become accepted as binding upon

the parties and their successors; the second is an empirical issue of how such norms arise and

104 See, primarily, E. Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Princeton: Princeton University Press, 1990); E. Ostrom, Understanding Institutional Diversity (Oxford: Oxford University Press, 2005); L. A. Fennell, ‘Ostrom’s Law: Property Rights in the Commons’ (2011) 5 International Journal of the Commons 9.105 n 72.106 (1960) 20 P & CR 909, at 919.107 n 72 at [51].

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evolve in the particular context of property relations attached to a specific place. The first

issue requires consideration of the relationship between law and norms. The legal centralist

stance (that law can only emanate from the state) has become less dominant in recent years,

largely due to the influential empirical research of Ellickson.108 He reached the broad

conclusion that some groups, in Ellickson’s case cattle ranchers in Montana, ignore the law in

favour of applying their own social norms.109 However, Ellickson has been critiqued for his

failure to see that these apparently informal and extra-legal rules are based on the ranchers’

legal status as landowners, so they are creating their own rules in the shadow of the law,

which they know they can fall back on if informality does not work.110 We agree that the

connections between formal law and self-generated norms are strong, making it important to

explore how self-generated norms may influence the dynamics of parties’ enduring property

relations.

Addressing the second issue identified above (how norms arise and evolve) may necessitate

empirical research into the lived and iterative experiences of property relations so as to

understand the expectations that evolve from the relationship itself. These self-generated

norms (or Ostrom’s working rules), were suggested by the eminent legal anthropologist Falk

Moore as the starting point for researching a ‘semi-autonomous social field’ that generates

its own rules and decisions and means of enforcement, but which is also penetrated by the

external legal system.111 Many instances of the type of property relationships focused on in

this article would fit the description of a semi-autonomous social field.

Property’s temporal element

108 G. Alexander & H. Dagan, Properties of Property (Kluwer: New York, 2011) 168.109 R. C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge MA: Harvard University Press, 1994).110 A. Sarat and T.R. Kearns, ‘Beyond the Great Divide: Forms of Legal Scholarship in Everyday Life’ in A. Sarat and T.R. Kearns (eds), Law in Everyday Life (Ann Arbor, Michigan: University of Michigan Press, 1993).111 S. F. Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1973) 7 Law & Soc’y Rev. 719.

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The duration of a property relationship may be indefinite (the fee simple), fixed for a long

notional duration (for example 99 or 999 years), for a shorter duration but with a possibility

that the relationship will be renewed (for example short commercial leases), or defined by

reference to an obligation (as in the case of mortgages). Sometimes the combination of law

with time may result in something the parties never anticipated, as with the statutory

conversion of leases for life or until marriage into leases for ninety years,112 and the

conversion of perpetually renewable leases into leases for two thousand years.113 Even where

a property relationship is expressed to be time-limited there are often routes by which that

duration can be changed either by being extended or brought to an earlier end. Rights to

extend or to terminate early may be granted or exercised by agreement of the parties (for

example, through the forfeiture or surrender of a lease); or may arise as a result of a policy

choice effected through legislation, for instance a right to a renew a business lease114 or to call

for an extended term or enfranchisement in the case of certain residential long leases.115

The on-going nature of property relationships opens up the possibility that both de facto and

de jure obligations may evolve over time. As noted earlier, certain de facto rights and

obligations may even become recognised in law. Property law scholars have addressed the

question of time, but usually at a macro scale. For example, the work of van der Walt

illustrates how once-marginal property interests may join the ‘mainstream rights paradigm’ as

a result of wider societal changes or legal and political developments.116 Referring to the fact

that property institutions are never ‘frozen’, Dagan also considers that property is ‘inherently

dynamic’.117 Davidson and Dyal-Chand identify ‘property moments’ when ‘property law -

112 Law of Property Act 1925, s149(6). See, for example, Berrisford v Mexfield Housing Co-operative Ltd [2012] 1 AC 955.113 Law of Property Act 1922, s145.114 Landlord & Tenant Act 1954, Part II. 115 Leasehold Reform, Housing and Urban Development Act 1993. 116 A.van der WaIt, Property in the Margins (Oxford: Hart, 2009).117 H. Dagan, ‘Private Law Pluralism and the Rule of Law’ in L.M. Austin and D. Klimchuk (eds), Private Law and the Rule of Law (Oxford: Oxford University Press, 2013) 165.

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and the larger culture of property - have witnessed moments of deep contestation, times of

crisis that call foundational concepts into question.’118

This article looks at the micro-scale and how the parties, courts and other decision-makers

address the complexities associated with enduring property relationships and the way in

which individual property relationships respond to change over time.

The parties may build responsiveness into the contractual documentation. As noted above, in

RCT scholarship Macneil associates the norms of solidarity, reciprocity, flexibility and role

integrity with long-term contracts at the relational end of the discrete/relational spectrum.119

Here a divergence between relational contracts and many property relationships in land

becomes apparent. Although some property relations do reflect these relational norms, others

appear to be founded on norms more commonly associated with ‘as if discrete’ contracts.

This can be illustrated by considering commercial leases. Although lease lengths vary

considerably almost 30% are between ten and fourteen years.120 The longevity of commercial

leases would be suggestive of the norms associated with relational contracts that are intended

to preserve the relationship. For instance, we might anticipate flexibility to mean something

like, ‘the lease itself provides accommodation on terms that do not constrain the occupier’s

ability to respond to its changing business circumstances’.121 However, as the property is

essentially an investment vehicle for many landlords, particularly of prime properties, the

value of the landlord’s reversion is critical and may be threatened by flexibility in lease 118 N. M. Davidson and R.Dyal-Chand, ‘Property in Crisis’ (2010) 78 Fordham L. Rev. 1607, 1612. They refer to the financial crash of 2008 and the change to US court practices in mortgage foreclosures. In UK the financial crisis also resulted in a shift in emphasis towards forbearance, but effected through regulatory pressure rather than judicial activism see S. Nield, ‘Mortgage market review: "hard-wired common sense?"’ (2015) 38 Journal of Consumer Policy 139.119 n 4 above, at 897. 120 Strutt and Parker, UK Commercial Property Lease Lengths Continue to Increase (2016), at https://perma.cc/PXJ9-R9U7. The average length of new leases is seven years.121 Department for the Environment, Transport and the Regions, Monitoring the Code of Practice for Commercial Leases, Interim Report (2004), ii.

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wording. Empirical evidence shows that commercial leases in the UK are seldom flexible, but

instead show high levels of ‘presentiation’,122 behaving in many respects like ‘as if discrete’

contracts. Far from the norms of solidarity and role integrity, commercial landlord and tenant

relationships are typically adversarial, with tenants complaining of poor communication (both

between landlord and tenant, and between tenants in multi-tenanted buildings),

confrontational stances, and slow response times to problems.123

The consequences of high levels of presentiation in leases are evident from case law. If

flexibility is built into the terms of the lease, it is done in a structured and controlled manner.

Anticipating the need for adjustment over time, commercial leases typically include carefully

drafted and detailed upward-only rent review clauses. Break clauses may allow for early

termination, but are applied strictly by the courts in view of the fact that leases are carefully

presentiated. In Marks and Spencer plc v BNP Paribas,124 the Supreme Court declined to

supplement this relationship by refusing to imply a term to permit the partial recovery of rent

paid in advance of exercising a break clause. Lord Neuberger referred to the fact that to imply

a term would ‘lie somewhat uneasily’ with the fact that the lease was a ‘very full and

carefully considered contract’.125

In the residential leasehold sector, similarly detailed forward-planning provisions are often

found in relation to service charges. These can sometimes have an unanticipated impact, as

shown in Arnold v Britton.126 Between 1977 and 1991 a number of 999 year leases were

122 N. Crosby, V. Gibson, S. Murdoch, ‘UK Commercial Property Lease Structures: Landlord and Tenant Mismatch’ (2003) 40 Urban Studies 1487; Office of the Deputy Prime Minister, Monitoring the 2002 Code of Practice for Commercial Leases (2005). It may be that in some sub-sectors, or in other countries, things are otherwise: see the characterisation of Australian retail leases as relational in L. Villiers and E. Webb, ‘Using relational contract principles to construe the landlord-tenant relationship: Some preliminary observations’ (2011) 1 Property Law Review 21.123 A. Langley and E. S. Stevenson, Incorporating Environmental Best Practice into Commercial Tenant Lease Agreements: Good Practice Guide, Parts 1 and 2 (Cardiff: Welsh School of Architecture, 2007). 124 n 66 above.125 ibid [49]. 126 n 64 above.

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granted of chalets in a caravan park. The initial annual service charge was £90 but the

wording of the contract seemed to commit the leaseholders to a 10 percent compound

increase each year, which by 2072 would result in service charges of over half a million

pounds annually! Applying the principles of contractual interpretation, the Supreme Court

was unable to interfere with this patently absurd result although there was both reluctance and

a strong dissenting voice.127 The majority could only suggest Parliamentary intervention, or

future negotiations between the parties to vary the service charge provision - in which the

landlord would clearly hold the stronger hand.128

These two Supreme Court cases show that where there are high levels of presentation in

property relationships the courts – at the crisis moment – must ‘ascertain the objective

meaning of the language which the parties have chosen to express their agreement’129 to

decide the outcome. Parties may therefore prefer to deal with issues differently so their

property relationship can be responsive over time. Research into the use of ‘green’ leases

shows the adoption of a number of strategies that support greater flexibility.130 For instance,

‘green’ clauses in leases are sometimes expressed in general terms and/or stated to be non-

binding, and sometimes consigned to Memoranda of Understanding (outside the formal lease)

so as to be easier to change over time. Interviewees in Patrick and Brights’ research

considered the non-binding nature of these obligations was desirable, because legally binding

clauses could inhibit cooperation and joint initiatives. Indeed one lawyer stated, ‘the lease is

very static, it’s very difficult to put these sorts of provisions in because they will naturally

evolve over time’.131

127 Lord Carnwath, discussed further below.128 Lord Neuberger, at 1637.129 Wood v Capita Insurance Services Limited [2017] UKSC 24. Lord Hodge at [10].130 n 76 above. 131 ibid 276.

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The high degree of planning that goes into long leases is somewhat ironic, given that many

property rights-holders pay little or no attention to the documentation. However, although this

may be true of the day-to-day, crisis moments may hit a property relationship,132 which could

result in termination, resolution or a pivotal turn in those relations. It is at this time that the

parties are likely to take the lease or mortgage out of the cupboard to see how their rights and

obligations are formally defined.

Another feature that flows from the enduring nature of property relationships is the

expectation of, or at least potential for, transmissibility. The fact that the property right

endures through different owners shapes the general principles of property law, the

negotiated content of property rights, and the way in which property relationships are

regulated. For example, leasehold covenants can be enforced by and against the persons who

are in the property relationship of landlord and tenant for the time being, even though they

are not in a contractual relationship.133 Likewise, leaseholders of different units within a

development, although not in a direct contractual relationship, may be able to enforce

covenants between themselves where they can establish a building scheme based upon the

imposition of common covenants.134

Transmissibility is not necessarily clear-cut, even though the rules of property law purport to

be. There appears to be a ‘spectrum of enforceability’ in the transmissibility of the internal

dynamics of a property relationship, reflecting the relative strengths of the express and

implicit understandings relating to the exercise of both the de jure rights and the de facto use

of land. At one end of this spectrum there are, for example, the leasehold covenants that, as

we have seen, bind successors. At the other end of the spectrum are ‘understandings’

132 n 118 above, 1612. 133 A result initially achieved through a combination of common law and statute (Spencer’s Case (1583) 5 Co Rep 16a; Law of Property Act 1925, ss 141 and 142) and now by the Landlord and Tenant (Covenants) Act 1995 – which was driven in large part by the need to remove the enduring nature of contractual liability.134 Williams v Kiley [2002] EWCA Civ 1645.

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developed by A and B regulating their use of communal space, which may be adopted by

their successors, A2 and B2. It is not that these bind A2 and B2 as a matter of law, but the

fact that A2 and B2 regard themselves as bound indicates that these norms can behave in a

‘property-like’ manner. In Blandy’s research one residential leaseholder explained how

informal obligations (in this case, sweeping the passageway outside the front door of her flat)

were passed on to new residents: ‘I just know that that’s supposed to be a rule, right. I follow

on accordingly’.135

This challenges boundaries between mere understandings, contract and property. Property

rules, for example, on leasehold covenants, provide a classic example of a ‘crystal rule’,

perfectly designed for regulating one-off transactions between strangers.136 However, an

appreciation of the dynamics of enduring property relationships dictates an exploration of the

spectrum of enforceability that underlies the rights and understandings within a given

relationship.

Discretionary spaces in decision-making

Enforceability is fore grounded when disputes arise. We now explore the scope for discretion

in decision-making and how far the enduring nature of property relations is acknowledged in

a range of decision-making scenarios, from informal dispute-resolution137 and regulatory

intervention,138 to property tribunals and courts. The manner in which disputes are resolved

between the parties inevitably impinges upon their relationship, and timing is important;

different forms of decision-making seem appropriate at different stages in the relationship.

135 Interview carried out for research project The Role Of Legality In Multi-Occupied Residential Settings: A Legal Consciousness Approach, funded by the British Academy.136 n 39 above. 137 For instance, informal mediation or the resolution of disputes by the Financial Ombudsman Service.138 For example the FCA who can issue directions or guidance to financial service providers. An instance is found in the resolution of payment protection insurance miss-selling; see https://www.fca.org.uk/news/statements/financial-conduct-authority%E2%80%99s-statement-payment-protection-insurance-ppi.

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This recalls the RCT vocabulary of the ‘relationship-preserving norms’ employed in

successful contractual relationships, and the contrasting ‘end-game norms’ which are

prioritised when bringing the contract to an end.139 In many enduring property relations,

informal decision-making (enforcement by the parties’ actions alone) is ‘braided’140 with the

formal (taking the dispute to an external decision-maker, to assist performance and provide

remedies). At those residential leasehold sites which successfully rely on close relations and

trust between residents to ensure that rules are followed, social sanctions are often effective

to ensure compliance with de facto rights and duties.141 Residents in this type of self-managed

governance property may also develop surprisingly formal internal mechanisms for conflict

resolution, thus avoiding recourse to external adjudicators.142

Courts, tribunals, ombudsman, regulators and mediators - as potential external ‘agents of

settlement’143 - may be able to recognise and build flexibility into enduring property relations

but their capacity to do so is variable. It is clearly possible where an agent of settlement has

executive powers to set, monitor and enforce norms of behaviour (for instance, the FCA as

regulator) or where they are not constrained by formal legal rules (for example, mediators).

Even some formal remedial powers are couched in the language of discretion in a manner

that is designed to enable courts, when appropriate, to ensure the preservation of enduring

property relations. For example, leases can be ‘saved’ when relief against forfeiture is

ordered,144 and the mortgagee’s right to possession may be delayed by the forbearance

measures already explained.

139 L. Bernstein, ‘Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms’ (1996) 144 U. Pa. L. Rev. 1765, 1796.140 R. J Gilson, C.F Sabel and R.E Scott, ‘Braiding: the interaction of formal and informal contracting in theory, practice and doctrine’ (2010) 110 Colum. L. Rev. 1377.141 n 102 above. 142 ibid. 143 n 32 above, 45. 144 A jurisdiction originally founded equity but now contained in Law of Property Act 1925, s 146(1).

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Our perspective pays attention to Rose’s insight that judges, who have to examine facts post

hoc, tend to lean towards ‘mud’ rules – applicable to individual circumstances and/or not

obvious until litigated - when asked to adjudicate on property rights which have been

readjusted by social understandings or where the power imbalance between the parties is

inequitable.145 More recent US property scholarship has also, at least partially, recognised

this with Gerhart considering judicial decisions through the lens of socially constructed

property obligations owed to others.146 At first instance there is frequently more scope for

discretion,147 with many illustrations of decision-makers acknowledging the mud-like reality

of lived and enduring property relationships. Analysis of judicial decisions in ‘neighbour law’

cases has shown that in common law jurisdictions, there is evidence of a move to take into

account the parties’ conduct and understandings in addition to their strictly legal

entitlements.148 For example, in establishing physical boundaries the courts can take account

of ‘the subsequent conduct of the parties’.149 Nevertheless, rules of construction can constrain

judges in recognising lived experiences. In contrast to boundary agreements, an easement is

construed according to its wording and meaning at the time of its grant, despite its enduring

nature, so if the right was precisely defined there is often little latitude to take account of

changes in use or subsequent conduct when interpreting the grant itself. As Bradley

demonstrates, the court will then have to look to other tools.

‘Muddy’ decisions raise the question of reliance and expectation. Davidson reworks the

presumption that settled expectations should have priority, to assert the importance of

flexibility in the law, if and when required:

145 n 39 above. 146 P. Gerhart, Property Law and Social Morality (New York: Cambridge University Press, 2013).147 J. Dickinson, Analysis of inter-resident disputes in private residential developments (unpublished, 2013), paper on file with [author].148 n 8 above. 149 Norman v Sparling [2014] EWCA Civ 1152 at [12].

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property rights are dynamic not only in reacting after the fact as the world changes

but also, crucially, in making clear that people can have some confidence from the

start that when problems emerge, the system they are contemplating entering will

not grind its inexorable way forward unmindful of change.150

In other words, responsiveness in certain circumstances is as important as crystal rules and

may contribute to stability within a dynamic relationship. For example, in the field of

European employment law, the concept of ‘Flexicurity’ has been developed, in recognition

that contractual arrangements which are both flexible and reliable can enhance stability and

security.151

Disputes over property claims which are at least partly founded in self-generated norms and

expectations may pose particular problems as these understandings and practices, developed

by parties over time, are likely to undermine the clarity of property.152 They can behave like

property, and once settled or adjudicated, solutions moulded from ‘mud’ may be transformed

into ‘crystallised’ rights. Self-generated norms then acquire proprietary effect.

The development of various (muddy) equitable doctrines has allowed a range of relationship-

specific factors to ‘soften and mollify the extremity of the law’.153 For example, the equitable

doctrine of estoppel by convention has been employed to justify deviation from the strict

terms governing service charges in a lease, because either both parties had assumed (wrongly)

that the charges should be calculated on a different basis, or one party had done so and the

other had acquiesced.154 Likewise, although Norris J noted in Bradley that the ‘court cannot 150 N. M. Davidson, ‘Property’s Morale’ (2011) 110 Mich. L. Rev. 437, 488.151 Employment, Social Affairs and Inclusion (European Commission), Flexicurity, at http://ec.europa.eu/social/main.jsp?catId=102.152 n 39 above. 153 Earl of Oxford’s Case (1615) 1 Ch Rep 1, Lord Ellesmere LC.154 Tingdene Holiday Parks Ltd v Cox [2011] UKUT 310; Clacy v Saunders [2015] UKUT 387, and Admiralty Park Management Ltd v Ojo [2016] UKUT, relying on Republic of India v India Steam Ship Co Ltd [1998] AC 878. This doctrine is apparently increasingly being used at First-tier Property tribunal level: see H Bowers, H. Carr and C. Hunter, ‘All in it together? Improving dispute resolution in collectively managed and collectively enfranchised

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write a rulebook for what may or may not be done in every eventuality’155 a property solution

to that dispute was found by drawing on proprietary estoppel. Proprietary estoppel enables the

court to examine a range of contextual factors, including self-generated norms, in order to

‘decide’ (or discover156) the parties’ rights, and in so doing may recognise that ‘between

neighbours there must be give as well as take’.157 Bradley was an expensive decision,

however, both in terms of time and the parties’ costs. In the majority of lived relationships the

parties simply cannot afford such expense - so it is the muddy rights that endure in

uncrystallised form.

The need to work within established legal doctrine sets constraints, at least in relation to

court-based dispute resolution. Within the court system, the higher courts are primarily

concerned with points of law in determining the correctness of a lower court’s decision.

Information theorists note approvingly that, unlike the relative freedom allowed to parties to a

contract, ‘with respect to the legal dimensions of property, the law generally insists on strict

standardization of interests’.158 Dyal-Chand, however, highlights the often inappropriate ‘all

or nothing’ outcomes to property disputes which result from a focus on individual ownership

and title, arguing that property sharing should be promoted as an outcome and that property

rights, wherever they may be situated on the spectrum between exclusive ownership and

commons property, should be recognised by the courts.159 On occasions courts have

expressed regret that they feel their hands are tied. In Arnold v Britton160 Lord Hodge upheld long leasehold properties’, paper presented at the Comparative Social Sustainability symposium, RMIT University Europe, Barcelona, 21-22 November 2016.155 n 72 above, at [84].156 Scholars differ as to whether the courts are simply declaring rights that are already established; see for example, B. McFarlane, ‘Proprietary estoppel and third parties after the Land Registration Act 2002’ (2003) 62 CLJ 661 (commenting on proprietary estoppel), or whether it is the court that effectively crystallises the right; see, for example A. Doyle and J. Brown, ‘Jones v Kernott: which road to Rome?’ (2012) 26 Trusts Law International 96, (discussing the Common Intention Constructive Trust).157 Costagliola v English (1969) 210 EG 1425, 1431.158 T. W. Merrill & H. E. Smith, ‘Optimal Standardization in the Law of Property: The Numerus Clausus Principle’, (2000), 110 Yale L. J. 1, 3.159 n 21 above.160 n 64 above.

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the ‘paper deal’ but commented that although ‘the court does not have power to remedy these

long term contracts so as to preserve the essential nature of the service charge in changed

economic circumstances [this] does not mean that the lessees’ predicament is acceptable.’161

Lord Carnworth’s dissent recognised that ‘[l]ong residential leases are an exceptional species

of contract’162 due to their enduring nature. The ‘paper deal’ in this case did not meet the

expectation that such leases would be drafted to ensure a fair distribution of the financial

obligations ‘in the interests of good management and harmony within the development for

both lessor and lessees’.163

Any resort to the courts by parties to an enduring property relationship represents a failure.

The process is adversarial, costly and emotionally draining, and may well spell the end of the

parties’ relationship. The transition from relationship-preserving to endgame norms is seen

clearly in Bradley: from the previously ‘consensual, co-operative and neighbourly approach’

to the parties ‘now resort[ing] to their legal rights’, and ‘ultimately legal rights (if insisted

upon) must be determined’.164 As Tan has shown, there will always be ‘a multiplicity of

narratives involved’ in adversarial proceedings, which the judge must craft and rationalise

into a final narrative that accounts for ‘the rational motivation of both parties in this

particular context’ and is persuasively explanatory of the final decision in the case.165 Whilst

exclusionary disputes are about a moment in time, disputes about continued use of land must

take into account the enduring nature of the parties’ relationship. In such cases, the judicial

decision can be seen as a pivot in time around which the parties’ continuing relations will

161 ibid, at [79]. 162 ibid, at [116]. 163 ibid, at [119]. 164 n 72 above, at [1].165 Z. X. Tan, ‘Beyond the Real and the Paper Deal: The Quest for Contextual Coherence in Contractual Interpretation’ (2016) 79 MLR 623, 638 (italics in the original).

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turn. The decision of the court, and the way that the judgment reflects the opposing

narratives, may enable the warring parties’ relationship to continue.166

An alternative solution would be for the parties to attend mediation and come to their own

resolution, as ultimately the parties in Bradley did at the door of the Court of Appeal. Property

Tribunal judges will often in effect act as mediators in leasehold disputes, offering advice on

how to advance the issue or about how the parties could build bridges and move on, or finding

a ‘middle ground’ between the parties.167 Judges also commonly make pleas for mediation in

neighbour dispute cases, which ‘arouse deep passions and entrenched positions’.168 For

instance Mummery LJ has suggested that:

An attempt at mediation should be made right at the beginning of the

dispute and certainly well before things turn nasty and become expensive.

By the time neighbours get to court it is often too late for court-based

ADR and mediation schemes to have much impact. […] Almost by its

own momentum the case that cried out for compromise moves onwards

and upwards to a conclusion that is disastrous for one of the parties,

possibly for both.169

These calls have not gone unheeded. Mediation and arbitration are becoming increasingly

significant in the dispute resolution process and even those who can afford litigation are

advised to consider some form of Alternative Dispute Resolution (ADR), or risk being

penalised in an order for costs.170 Indeed, in certain contexts ADR is required as a

preliminary step. For example, regulated mortgage providers must have an internal

166 ibid. 167 n 147 above.168 Oliver & Anor v Symons & Anor [2012] EWCA Civ 267 at [53]. See also Lord Carnworth n 69 at 1661.169 Bradford v James [2008] EWCA Civ 837 at [1].170 Practice Direction - Pre-action Conduct and Protocols, Civil Procedure Rules, at https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct.

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complaints handling process and once this process is exhausted the mortgagor is entitled to

refer his or her dispute to the Financial Ombudsman Service. 171 The Ombudsman is

empowered to look past the contract to resolve the dispute in a manner that it considers fair

and reasonable on a case-by-case basis. The decision is binding on the mortgagee although

the mortgagor can decline to accept the result and continue to pursue their case before the

courts.172 The Ombudsman also plays a wider role in influencing regulatory norms of ‘fair’

conduct expected of mortgagees: issuing guidance on how common disputes are approached,

with recommendations as to fair practice;173 producing regular newsletters detailing its

resolution of complaints; and publishing its foremost decisions.174 Being at the sharp end of

consumer complaints, the Ombudsman can also prompt the FCA to take regulatory action to

resolve market malpractice.175

The different scope and styles of reaching a resolution between the parties, in the court

system and through ADR, suggest that the latter may be more appropriate for dealing with

disputes over enduring property relationships. Litigation focuses on legal rights and trims

evidence with that in mind, thus reducing scope for discretionary decision-making, whereas

ADR looks beyond the law to give effect to the wider sources of the relationship rights and

obligations. Mediators encourage parties to talk around the issue, thus opening up solutions

and giving space for the relationship to endure.

But the weaknesses of ADR also need to be recognized. ADR is often seen as a mere

procedural step. If the resolution is the grant of a new property interest, the necessary

171 See http://www.financial-ombudsman.org.uk.172 Financial Services and Markets Act 2000, s 229.173 See http://www.financial-ombudsman.org.uk/publications/technical_notes/mortgage-arrears-and-charges.html .174 Financial Services and Markets Act 2000, s230A.175 See the Memorandum of Understanding between the Financial Conduct Authority (the FCA) and the scheme operator, the Financial Ombudsman Service Limited (2015) at https://www.fca.org.uk/publication/mou/mou-fos.pdf).

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formalities and registration will need to be observed if the outcome is to have proprietary

effect as well as bind third parties. Embedding the agreed outcome of ADR in the parties’

enduring property relationship can then be reflected in new de jure rights.

Conclusion

This article argues that it is necessary to explore the dynamic and enduring nature of property

relations to understand property fully. The terms and understandings upon which property

relations depend are derived from a variety of sources. Each particular relationship differs

according to its type, its rationale, its particular location and context, and the course of its

evolution. Nevertheless there are commonalities which we have sought to capture in the three

broad themes identified here, namely: the diverse network of sources (including, but

extending beyond, legal rules) which are multifaceted in their interactions, property’s

temporal dimensions and the discretionary spaces within decision-making. The significance

of these themes has been illustrated through examples drawn principally from research into

commercial leases, the use of communal space within residential leasehold sites and

residential mortgages, reflecting the article’s focus on property relationships in land with a

contractual or consensual basis.

This demonstrates the value of the dynamics perspective. For commercial leases, the tension

between the formal and the informal is revealed. The apparent certainty of presentiation in a

‘discrete’ lease may be attractive, but parties recognize that it may not be desirable, or even

possible, for the ‘real deal’ to be committed to legally binding terms. Mortgage law as a

property institution has a long history; although some of the foundational legal rules remain

largely unchanged, regulatory rules and practices have evolved in response to the changing

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social and economic landscape and the contemporary importance of the residential mortgage

to delivery of home ownership and financial market stability. The temporal element in

property relationships and the importance of self-generated norms appear particularly

relevant in residential leasehold contexts, as the (self-) regulation of communal space must

attempt to reconcile diverse needs, attitudes and values as they change over time.

This article has also suggested that forms of decision-making and dispute resolution which

reflect flexibility, informality, and compromise are more likely to be effective in resolving

disputes and promoting successful enduring property relationships. Crystalline legal rights

encapsulated at a moment in time often seem poorly designed for dynamic and enduring

property relationships. The alternative is for property law ‘to enable workable informal

arrangements between neighbours to survive changes in ownership without requiring

unilateral action [i.e. recourse to the courts] by one neighbour in relation to the title of

another, which may itself be productive of dispute and discord’.176

As Singer notes, ‘we will better understand the function of property law in our economic and

legal system if we … include the entire social and legal structure that defines the property-

rights system.’177 This entails moving beyond the picture of property as a black and white

photograph capturing a moment in time. Instead we want to see property in three dimensions,

and in colour, to accurately represent the right holders’ relationship located in time and space

and in lived experiences. This captures not only the clarity of the legal rules that bind the

parties but also the wider frameworks in which their property relationship is embedded and

the soft-focused self-generated norms which may develop. Both representations are important

176 n 14 above, at [12] and [33]. 177 n 59 above, 1053.

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and have their place, but to promote one without the other runs the risk of distorting and

devaluing the conception of property to one dominated by exclusionary rights.

The themes explored in this article, and their interaction, provide a starting point to more

fully appreciate the dynamics of enduring property relations in all their various forms. We

encourage those interested in property to join us in our exploration of property as dynamic

and enduring, not as an alternative to established legal rules and doctrines but as a richer and

more challenging appreciation of property within lived relationships.

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